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In re Hruska

February 8, 2005

IN THE MATTER OF MARK HRUSKA.


Before Judges Kestin, Lefelt and Alley. On appeal from a Final Decision of the New Jersey Merit System Board, Docket No. Csv-8982-00.

The opinion of the court was delivered by: Lefelt, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2004

Petitioner Mark Hruska appeals from a Merit System Board decision upholding respondent Borough of Carteret's refusal to appoint Hruska, under the"rule of three," from two Department of Personnel certified lists of eligible candidates for Carteret's paid fire department. On appeal, Hruska makes three arguments for reversal of the Board's decision. He alleges that (1) Carteret refused to appoint him on August 17, 1998 and June 2, 1999 for discriminatory and retaliatory reasons, (2) Carteret failed to support its decision denying him appointment on June 2, 1999, and (3) both refusals to appoint were improper because Carteret modified the Department of Personnel eligibility criteria by adding a threshold requirement that applicants be active volunteer firefighters. We affirm, without further discussion, the Board's decision that Hruska failed to prove age discrimination and retaliation. R. 2:11-3(e)(1)(D). That decision was not arbitrary, capricious, or unreasonable and warrants our affirmance. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). We find Hruska's second argument without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). However, we disagree with the Board's conclusion that Carteret properly utilized the"rule of three," and reverse on that basis.

Carteret has a combination Fire Department, consisting of two volunteer departments and one paid, or career, department. There are a maximum of seventy-four firefighters permitted to join the volunteer departments and only eighteen firefighters are allotted to the career department.

Hruska acquired his firefighting experience in Carteret by enrolling in the volunteer departments in 1980. He advanced as a volunteer until he became Chief of the volunteers in 1994, when he was about thirty-five years of age. In his fifteen years of fighting fires, Hruska was involved in seventy to seventy-five percent of all fire calls, thereby fighting from 300 to 500 fires each year. There is no question that Hruska's service as a volunteer firefighter was commendable and that he was the recipient of several awards and honors. In 1993, Hruska was awarded a certificate of exemption, which qualified him for various firefighter benefits. See N.J.S.A. 40A:14-56 to -65.

In 1994 or 1995, Hruska took a civil service exam and physical to become a paid firefighter in Carteret. After completing the exam and physical, the Department of Personnel told Hruska that he ranked number one on the certification list. In 1996, Hruska became an"inactive" volunteer firefighter and, though he remained inactive through all relevant dates, as openings in the paid firefighter service department occurred, he began to apply for appointment.

Carteret followed the normal civil service process to fill openings in the career service. As openings occurred, the Borough Council's Fire Committee requested from the Department of Personnel a certified list of candidates who had passed the physical and written exam and were eligible for appointment to the paid department. The Fire Committee considered the persons on the list and made recommendations to the Borough Council, which was responsible for making the final hiring determinations.

The Council denied appointment to Hruska three times, but he appeals from only the last two rejections. The circumstances surrounding the last two rejections, August 17, 1998 and June 2, 1999, are as follows. On August 17, 1998, the Department of Personnel certified a list of candidates and Hruska was ranked second. The Council appointed the first-ranked candidate and bypassed Hruska to appoint the third-and fifth-ranked candidates. On June 2, 1999, the Council once again bypassed Hruska on the certified list. This time, Hruska was ranked first, but the Council appointed the second-and third-ranked candidates instead.

Hruska's objections to the Council's actions eventually came before Administrative Law Judge Joseph Lavery, who found that"[t]he Borough Council imposed a threshold requirement of active volunteer firefighting status which overrode any other consideration of suitability for appointment." The ALJ criticized Carteret for creating"a threshold, qualifying requirement for appointment of already-qualified, [Department of Personnel-]certified eligibles, of whom [Hruska] was one. This unlawful requirement was: active participation in volunteer firefighting." Because the judge concluded that the Council"had no legal authority" to"effectively eliminate[] [Hruska] from the certification," the"bypass under the rule of three was consequently invalid."

The Merit System Board rejected the ALJ's determination as a"legal conclusion." The Board explained that"under the Rule of Three, [an appointing authority like Carteret] may use any legitimate basis to bypass an individual in favor of lower ranked eligibles." The Board reasoned that"[i]n this case, it was not illegal for the appointing authority to use active volunteer service in differentiating between the candidates. Such a distinction appears to be job-related and consistent with principles of merit and fitness, and does not present any form of illegal discrimination...."

We disagree with the Board and believe that the agency has misinterpreted Judge Lavery's fact finding and consequently reached the wrong legal conclusion. The ALJ found that Carteret had"created a threshold, qualifying requirement for appointment" that was not among the qualifying eligibility requirements developed by the Department of Personnel. This finding was based on the judge's credibility assessment of several lay witnesses who testified at the hearing, and focused on the Council's determination that in essence found Hruska ineligible for the position and not on the Council's differentiation among candidates on the eligibility list.

The ALJ's finding was, therefore, not a legal determination that could be reversed by the Board simply because it disagreed with the judge. The Board can only reverse fact findings based on the credibility of lay witnesses if the findings are"arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c). If it wished to reverse the fact finding at issue, the Board had to state"with particularity" its reasons for rejecting the finding. Ibid. The Board may not simply recast the finding as a legal determination because it wishes to reach a different conclusion than the one reached by the ALJ. See Cavalieri v. Bd. of Trs. of PERS, 368 N.J. Super. 527, 534 (App. Div. 2004).

Because the ALJ's fact finding distinguished between an appointing authority preferring active volunteers and using that criterion as an eligibility factor, the Board incorrectly reviewed the judge's fact finding. The Board not only improperly considered the fact finding a"legal conclusion," but also shifted the judge's finding from its eligibility context to the context by which active volunteer ...


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